The United States Courts, also known as the Federal Judiciary, consists of multiple types of courts that hear criminal and civil cases as well as appeals. The Federal Judiciary includes the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts. Combined, these federal courts issue thousands of decisions each year. Some of these decisions spark considerable controversy, such as rulings affecting detainees held by the U.S. government, school vouchers and gun control. The Ninth Circuit Court, in particular, is the source of longstanding debate over its size and rulings.

The United States Supreme Court was established under the U.S. Constitution. Article III dictates that the judicial power of the federal government resides in “one Supreme Court, and in such inferior courts” that Congress establishes. The Constitution granted the Supreme Court original jurisdiction in cases involving states and diplomats, but left Congress to decide the size and responsibilities of the Supreme Court.

These added details were created under the Judiciary Act of 1789, which dictated that the court would have one chief justice and five associate justices. The act further defined the jurisdiction of the Supreme Court to include appellate jurisdiction in larger civil cases and cases in which state courts ruled on federal statutes. Congress required the justices of the Supreme Court to preside with the local federal judges on the U.S. circuit courts that met in judicial districts throughout the nation. This was done to ensure that members of the highest court would participate in the principal trial courts of the federal judiciary and be familiar with the procedures of the state courts.
 

The size of the Supreme Court grew to accommodate the establishment of new circuits as the nation expanded. In 1807 a seventh justice was added to the court, and in 1837, an eighth and ninth justice joined the Supreme Court. The Supreme Court reached its largest size in 1863 with the creation of a Tenth Circuit on the west coast and the appointment of a tenth justice. In 1866, Congress reduced the size of the court to seven justices and provided that no vacant seats be filled until that number was reached. The number of sitting justices fell to eight before an act of 1869 provided for nine justices, one for each of the judicial circuits established in 1866. The size of the court has since remained the same.

The duties of circuit riding required the Supreme Court justices to spend most of their time traveling and prompted recurrent efforts to reduce or eliminate this responsibility. In 1793, Congress reduced the number of justices required to hold circuit court from two to one. In the Judiciary Act of 1801, Congress created separate circuit judgeships and freed the justices from any circuit court duties, but this exemption was short-lived. In 1802 Congress again assigned the justices to serve on the U.S. circuit courts, although it allowed the district judge to preside alone in some instances. The establishment of separate circuit judgeships in 1869 further relieved the circuit obligations of the justices. When Congress abolished the circuit courts in 1911, it finally made the justices’ circuit duty optional.
 

Throughout its first century, the Supreme Court was responsible for deciding most civil appeals, and the justices had little control over a docket that was increasingly overcrowded. The act establishing the circuit courts of appeals in 1891 authorized the justices to grant review through certiorari (requesting transcripts from a lower court) and allowed the courts of appeals to certify other cases for appeal to the high court at the same time that it restricted the right of automatic appeal to the Supreme Court. The Judges Bill of 1925 further increased the justices’ discretion in determining what cases to hear, and in 1988, Congress eliminated almost all types of mandatory jurisdiction.
 

The Supreme Court has exercised only limited administrative authority over the federal courts. In 1922 the act creating the Conference of Senior Circuit Judges required the chief justice or an associate justice to convene the conference, and the chief justice continues to preside over the Judicial Conference. Congress in 1934 granted the Supreme Court responsibility for drafting rules of federal procedure. The 1939 law creating the Administrative Office of the U.S. Courts provided that the Supreme Court would appoint its director. Congress changed the law in 1990, vesting that authority in the chief justice in consultation with the Judicial Conference. The chief justice also chairs the board of the Federal Judicial Center.

Members of the Supreme Court (1789 to Present)

The Supreme Court Historical Society

District Courts

As part of the Judiciary Act of 1789, the nation was divided into thirteen judicial districts that served as the basic organizational units of the federal courts. In each district, a U.S. district court served as the federal trial court for admiralty and maritime cases, as well as for some minor civil and criminal cases. Congress authorized the district judge to appoint a clerk in each district to assist in the administration of the district and circuit courts and authorized the President to appoint in each district a marshal and federal prosecutor, then called a “district attorney.” The court’s jurisdiction was limited to cases arising within the district, and the judges were required to reside in their districts. The original districts outlined by Congress coincided with the borders of the eleven states that had ratified the Constitution, with separate districts for Maine and Kentucky, which were still a part of Massachusetts and Virginia, respectively.
 

In the early years of the federal government, caseload in the district courts depended largely on the volume of admiralty suits in the region, and some courts heard few cases. District judges also served on the U.S. circuit court that met in each judicial district, and for much of the 19th century, district judges were likely to devote more time to their duties on the circuit courts than to the business of the district courts. Gradually during the 1800s, Congress expanded the jurisdiction of the district courts, especially in the area of non-capital criminal cases.
 

In the original districts of Maine and Kentucky and in many new states during the 19th century, the district court also exercised the jurisdiction of the circuit courts until the district was incorporated into a judicial circuit. Appeals from such courts generally went to the Supreme Court and occasionally to the circuit court in another district within the state. It was not until 1899 that Congress provided a circuit court for every judicial district in the nation thus ending the expanded jurisdiction of certain district courts. In the Judicial Code of 1911, Congress abolished the circuit courts and made the U.S. district courts the sole trial courts of the federal judiciary.

As new states entered the union, Congress created additional district courts whose jurisdictions matched the geographical boundary of the new states. But then, beginning in the 1790s, Congress divided some states into multiple districts, each with court staff and separate records of proceedings. Frequently, a single judge served more than one district within a state. The U.S. District Court for New York in 1812 became the first in the nation with two judgeships, but in 1814 Congress divided the state into two judicial districts, each with a single judge. Congress did not create another permanent second judgeship for a district court until 1903 when it authorized an additional judgeship for the Southern District of New York. Today, there are 91 U.S. district courts in the states, the District of Columbia, and Puerto Rico, with a total of 663 district judgeships.

Appeals Courts

The U.S. courts of appeals were first established under the Judiciary Act of 1891 (also known as the Evarts Act), designed exclusively to hear cases on appeal from trial courts. Created to relieve the caseload of the Supreme Court and to handle a dramatic increase in federal filings, nine courts of appeals, one for each judicial circuit, were set up. The existing circuit judges and a newly authorized judge in each circuit became the judges of the appellate courts. The circuit justice and district judges in the circuit also were authorized to sit on the three-person courts of appeals panels.

The Evarts Act gave the courts of appeals jurisdiction over the great majority of appeals from the U.S. district courts and the U.S. circuit courts. The act limited the categories of cases that could be routinely appealed to the Supreme Court, and the Judiciary Act of 1925 and later statutes continued that trend while expanding the jurisdiction of the courts of appeals. By the 1930s, the courts also had jurisdiction over administrative appeals of decisions rendered by federal regulatory agencies. The 1922 law that established the Conference of Senior Circuit Judges, the forerunner of the Judicial Conference of the United States, gave the senior judge in each circuit some formal administrative authority over the district courts in each circuit. Congress expanded the administrative responsibility of the courts of appeals judges in 1939 with the creation of the circuit judicial councils.

As with the evolution of the Supreme Court, the courts of appeals grew in size and number over time. By the 1920s, each court of appeals had at least three assigned judgeships, which eliminated the need for the regular service of district judges on court of appeals panels. In 1893, Congress created a Court of Appeals of the District of Columbia. Two additional courts of appeals were created with the establishment of new regional circuits, the Tenth in 1929 and the Eleventh in 1980. In 1982, Congress combined the jurisdictions of the U.S. Court of Customs and Patent Appeals and the U.S. Court of Claims into one court, the U.S. Court of Appeals for the Federal Circuit. In recent years Congress has established commissions to examine possible changes in the structure of the courts of appeals.

The Commission on Revision of the Federal Court Appellate System in 1973 recommended the division of the Fifth Circuit as well as the creation of a National Court of Appeals that would decide cases and settle inter-circuit conflicts. In 1998, the Commission on Structural Alternatives for the Federal Courts of Appeals reported on proposals to divide the Ninth Circuit. It recommended preserving the circuit for the western states but dividing the circuit’s court of appeals into regional divisions, while a “Circuit Division” with a rotating membership of Ninth Circuit judges would settle differences between the divisions.
 

In the Judicial Code of 1948, Congress changed the title of the federal appellate courts to the US Court of Appeals for the respective circuit. The 13 appellate courts today have a total of 179 judgeships.

Circuit Courts

Circuit courts were also established under the Judiciary Act of 1789. These courts were intended to serve as the trial courts for most federal criminal cases, for suits between citizens of different states (diversity cases), and for civil suits initiated by the United States. The circuit courts also exercised appellate jurisdiction over all but the smallest admiralty cases and other civil suits that originated in the U.S. district courts. Rather than create separate judgeships, Congress stipulated that each circuit court panel would consist of two justices of the Supreme Court and the local U.S. district court judge. Beginning in 1793, Congress required only a single Supreme Court justice to hold a circuit court with the district judge. The circuit courts convened in each federal judicial district and were designated by the name of the district (for example, the U.S. Circuit Court for the District of Massachusetts).

In an effort to institute a stronger federal judiciary, the outgoing Federalist majority in Congress adopted the Judiciary Act of 1801, which established six federal judicial circuits and relieved the Supreme Court justices of any circuit court responsibilities. The act authorized three circuit judgeships for each of the five circuits east of the Appalachians, while a single circuit judge and the district judges for Kentucky and Tennessee were to form the panel for the U.S. Circuit Court for the Sixth Circuit.
 

A new Congress with a majority of Jeffersonian Republicans repealed the controversial Judiciary Act of 1801 13 months later and reorganized the federal court system in the Judiciary Act of 1802, which preserved the system of six numbered circuits but abolished the separate judgeships. Once again, a justice of the Supreme Court joined with a district court judge to convene circuit courts. The 1802 act authorized the district judge to hold a circuit court in the absence of the justice, although only a justice could preside over appeals from the district courts. (An 1867 law allowed the district judge to rule on appeals if all parties in the case consented.) As the country grew, Congress expanded the number of circuits and increased the size of the Supreme Court to provide a justice for assignment to each circuit. In 1855 Congress created the U.S. Circuit Court for the California Circuit and authorized a separate circuit judgeship. In 1863 Congress abolished this court, as well as the judgeship, and placed California and Oregon in a Tenth Circuit.

Faced with a sharp increase in the volume of federal litigation, Congress in 1869 created a judgeship for each of the nine circuits then in existence. The new circuit judge, the designated justice, the district judge, or some combination of two of them could preside over the circuit courts. The circuit judges had the same authority as the Supreme Court justice assigned to the circuit. The appellate jurisdiction of the circuit courts ended in 1891 with the creation of the U.S. circuit courts of appeals, to which the circuit judges were assigned. The circuit courts continued to serve as trial courts until January 1, 1912, when they were abolished according to the terms of the Judicial Code of 1911.

Bankruptcy Courts

In the 19th century, federal courts were responsible for the administration of bankruptcy cases. Legislation passed in 1800 authorized judges of the district courts to appoint commissioners who would oversee the discharge of debts in each bankruptcy case. In 1841, Congress granted the district courts “jurisdiction in all matters and proceedings in bankruptcy” and charged the courts with formulating rules for bankruptcy proceedings. Under legislation that governed federal bankruptcy from 1867 to 1878, Congress referred to the district courts as “constituted courts of bankruptcy,” with original jurisdiction in all bankruptcy matters. The district courts were to be open at all times for bankruptcy business, and the district judges were authorized to appoint registers to assist in the administration of such cases. The 1898 Bankruptcy Act reaffirmed the role of district courts to serve as courts of bankruptcy. The act established the position of referee: referees were appointed by district judges to oversee the administration of bankruptcy cases and to exercise certain judicial responsibilities referred by the district court.

By the 1960s, the rise in consumer bankruptcy and congestion in the federal courts led to proposals for reform of the nation’s bankruptcy laws. As part of a broad plan to revise the bankruptcy code, the Commission on Bankruptcy Laws of the United States recommended the establishment of independent bankruptcy courts within the federal judiciary. The Bankruptcy Reform Act of 1978 conferred original bankruptcy jurisdiction on the district courts and established a bankruptcy court in each judicial district to exercise bankruptcy jurisdiction. The act provided that the new bankruptcy courts would be considered adjuncts of the district courts, but would be presided over by bankruptcy judges appointed by the President and confirmed by the Senate for 14-year terms, beginning in 1984. In the meantime, the incumbent referees served as bankruptcy judges.

In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., the Supreme Court in 1982 declared unconstitutional the grant of bankruptcy jurisdiction to independent courts composed of judges who did not have life tenure and other protections of Article III of the Constitution. In response to the court’s recommendations that Congress restructure the bankruptcy courts, the Bankruptcy Amendments and Federal Judgeship Act of 1984 conferred bankruptcy jurisdiction on the district courts and authorized the district courts to refer any or all matters falling within that jurisdiction to the bankruptcy judges for the district. The 1984 act also provided that bankruptcy judges would be appointed by the courts of appeals. Under current practice, district courts automatically refer bankruptcy cases and proceedings to the bankruptcy court. A bankruptcy court is authorized to decide all referred business, except in limited matters known as “non-core” proceedings. If one of the parties does not consent to entry of a judgment by the bankruptcy judge in these proceedings, the bankruptcy court may only hear the matter and submit proposed findings of fact and conclusions of law to the district court. The district judge then enters the final order, which is subject to review by the courts of appeals or bankruptcy appellate panels.

History of the Courts of the Federal Judiciary

The United States Courts consist of four different levels of legal jurisdictions that hear both criminal and civil cases. The four courts are the U.S. Supreme Court, U.S. Court of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts.

U.S. Supreme Court

The United States Supreme Court consists of the Chief Justice of the United States and eight associate justices. At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law.

Those currently serving on the court are Chief Justice John G. Roberts, Jr. and Associate Justices Elena Kagan, Antonin Scalia, Anthony M. Kennedy, Sonia Sotomayor, Clarence Thomas, Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito, Jr. The U.S. Supreme Court Justices Database is maintained by Northwestern University’s law school, with links to it from the U.S. Supreme Court Web site. The public database contains a wealth of information on individuals nominated (whether confirmed or not) to the Supreme Court.

In addition to the nine justices, court officers assist the court in the performance of its functions. They include the Administrative Assistant to the Chief Justice, the Clerk, the Reporter of Decisions, the Librarian, the Marshal, the Court Counsel, the Curator, the Director of Data Systems, and the Public Information Officer. The Administrative Assistant is appointed by the chief justice. The Clerk, Reporter of Decisions, Librarian, and Marshal are appointed by the court. All other court officers are appointed by the chief justice in consultation with the court.

The term of the Supreme Court begins, by law, on the first Monday in October and lasts until the first Monday in October of the next year. Approximately 10,000 petitions are filed with the court each term. In addition, some 1,200 applications of various kinds are filed each year that can be acted upon by a single justice.

The automated docket system is the court’s case tracking system. It contains information about cases, both pending and decided. The docket database contains information regarding the status of cases for both the current term and prior terms.

During Supreme Court hearings, each side is allowed 30 minutes argument and up to 24 cases may be argued at one sitting. Since the majority of cases involve the review of a decision of some other court, there is no jury and no witnesses are heard.

Each week, the justices must also evaluate more than 130 petitions seeking review of judgments of state and federal courts to determine which cases are to be granted full review with oral arguments by attorneys.

Prior to hearing oral argument, other business of the court is transacted. On Monday mornings this includes the release of an Order List, a public report of court actions including the acceptance and rejection of cases, and the admission of new members to the Court Bar.

In May and June, the court sits only to announce orders and opinions. The court recesses at the end of June, but the justices continue their work, analyzing new petitions for review, considering motions and applications, and making preparations for cases scheduled for fall argument.

The Supreme Court Web site also provides information about Briefs on the Merits, Court Rules, Case Handling Guides, Opinions of the Court and Orders of the Court.  

The Supreme Court and Its Traditions

The Supreme Court and Constitutional Interpretation

The Supreme Court Building

U.S. District Courts

District courts are the trial courts of the federal court system. These courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia, and Puerto Rico. Three territories of the United States—the Virgin Islands, Guam, and the Northern Mariana Islands—have district courts that hear federal cases, including bankruptcy cases.

There are two special trial courts that have nationwide jurisdiction over certain types of cases. The Court of International Trade addresses cases involving international trade and customs issues. The United States Court of Federal Claims has jurisdiction over most claims for money damages against the United States, disputes over federal contracts, unlawful “takings” of private property by the federal government, and a variety of other claims against the United States.

U.S. Courts of Appeals

The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. Eleven of the districts are numbered, with the last being the court that covers the District of Columbia. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.

In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.

U.S. Bankruptcy Courts

Each of the 94 federal judicial districts handles bankruptcy matters, and in almost all districts, bankruptcy cases are filed in the bankruptcy court. Bankruptcy cases cannot be filed in state court. Bankruptcy laws help people who can no longer pay their creditors get a fresh start by liquidating their assets to pay their debts or by creating a repayment plan. Bankruptcy laws also protect troubled businesses and provide for orderly distributions to business creditors through reorganization or liquidation. These procedures are covered under Title 11 of the United States Code (the Bankruptcy Code). The vast majority of cases are filed under the three main chapters of the Bankruptcy Code, which are Chapter 7, Chapter 11, and Chapter 13.

Administrative Office of the United States Courts

The Administrative Office of the United States Courts (AO) is the central support entity for the judicial branch. It provides a wide range of administrative, legal, financial, management, program, and information technology services to the federal courts. The AO provides support and staff counsel to the Judicial Conference of the United States and its committees, and implements and executes Judicial Conference policies, as well as applicable federal statutes and regulations. The AO facilitates communications within the Judiciary and with Congress, the executive branch, and the public on behalf of the Judiciary.

Circuit Assignments of Justices (pdf)

From the Web Site of the U.S. Courts

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USAspending.gov, the federal Web site that provides information on contracts awarded by Executive Branch agencies, does not collect information on any contracts that the administrative functions of U.S. federal courts may issue.

Clarence Thomas Controversies

Supreme Court Justice Clarence Thomas has been repeatedly criticized for accepting numerous gifts from individuals and organizations, some of which have been involved in cases before the U.S. Supreme Court. Thomas also got into hot water for not disclosing in a timely manner the income sources of his wife, which is required under judicial rules of conduct.

One contributor to Thomas was Dallas real estate magnate and Republican supporter Harlan Crow, who reportedly “showered Thomas with lucrative gifts, including a massive check to the justice’s wife to start her lobbying organization, and a multimillion-dollar deal in which Crow created a museum at a cannery where Thomas’ mother worked,” according to AlterNet.

Another gift giver was a conservative think tank, the American Enterprise Institute (AEI), which awarded Thomas with a $15,000 bust of Abraham Lincoln. According to Think Progress, AEI filed three briefs with the Supreme Court after Thomas received the think tank’s $15,000 gift. Thomas recused himself from none of the cases, “and he either voted in favor of the result AEI favored or took a stance that was even further to the right in each case.”

The Los Angeles Times found Thomas had accepted tens of thousands of dollars worth of gifts since joining the high court, including $1,200 worth of tires and a $5,000 personal check to help pay a relative’s education expenses.

Thomas garnered even more bad publicity after he amended 20 years worth of financial disclosure forms, revealing he had not reported wife’s place of employment during that span. It turned out Virginia Thomas drew income from the Heritage Foundation, a conservative think tank where she worked from 1998 to 2003.

But the amended forms did not reveal that his wife’s work at Liberty Central, a conservative political education group she co-founded in January 2009 in part to energize Tea Party activists. In September 2011, 20 House Democrats called for a federal investigation into Thomas’ failure to disclose his wife’s income, charging that he may have violated the court’s ethics rules. The movement to investigate Thomas gathered steam and in November 2011, 52 House Democrats signed a similar request.

Wealthy GOP Financier Showered Clarence Thomas with Gifts, Money (AlterNet)

Clarence Thomas Decided Three Cases Where AEI Filed A Brief After AEI Gave Him A $15,000 Gift (by Ian Millhiser, Think Progress)

8 Reasons Why Supreme Court Justice Clarence Thomas Must Step Down (by Adele Stan, AlterNet)

Justice Thomas Reports Wealth of Gifts (by Richard A. Serrano and David G. Savage, Los Angeles Times)

Justice Clarence Thomas Amends 20 Years of Disclosure Forms With Wife's Employers (by Ariane de Vogue and Devin Dwyer, ABC News)

Democrats Ask for Investigation into Clarence Thomas (by Stephanie Condon, CBS News)

Alliance for Justice Praises Letter from 52 Members of Congress Calling for Investigation of Clarence Thomas' Disclosure Lapses (Alliance for Justice)

Citizens United Decision

In one of the most important and controversial rulings in recent court history, the U.S. Supreme Court decided in 2010 that the government cannot restrict corporations from contributing to election campaigns. In Citizens United v. Federal Election Commission, a narrow majority (5-4) threw out longstanding rules that limited giving by corporations as well as labor unions, though most attention was paid to the impact the ruling would have on corporate donations.

The conservative wing of the court (John Roberts, Anthony Kennedy, Clarence Thomas, Antonin Scalia, and Samuel Alito) agreed to overrule two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates; and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) that restricted campaign spending by corporations and unions.

The majority said to limit corporate giving would constitute a violation of the First Amendment, which grants free speech to individuals. Dissenters warned the ruling would allow corporate money to flood election campaigns and corrupt democracy.

President Barack Obama called Citizens United “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

The only solace for opponents was eight of the justices (minus Thomas) agreed that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements.

Two years after the ruling, opponents were hoping the court would revisit the Citizens United ruling when it heard a challenge to Montana’s century-old law banning corporations from spending money in state elections. The court, however, did not reconsider the precedent while ruling the Montana law unconstitutional.

Justices, 5-4, Reject Corporate Spending Limit (by Adam Liptak, New York Times)

Citizens United v. FEC (Amicus Brief) (Brennan Center for Justice)

Supreme Court Faces Pressure To Reconsider Citizens United Ruling (by Robert Barnes, Washington Post)

Supreme Court Grants Detainees Rights in Federal Court

In June 2008, the U.S. Supreme Court handed the Bush administration a stinging defeat when it ruled that suspected terrorists and foreign fighters held by the U.S. military at Guantánamo Bay, Cuba, have the right to challenge their detention in federal court.

Writing for the majority in the 5-4 ruling, Justice Anthony Kennedy said, “the laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system reconciled within the framework of the law.” Kennedy, the court’s swing vote, was supported by Justices Ruth Bader Ginsburg, Stephen Breyer, and then-Justices John Paul Stevens and David Souter, generally considered the liberal contingent.

Four justices disagreed, including Justice Antonin Scalia. In a sharp dissent, read in part from the bench, Scalia said the majority “warps our Constitution.” He added: “The nation will live to regret what the court has done today.” He was supported by the conservative wing of the Supreme Court, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

The ruling affected legislation adopted by Congress in 2006 after the high court ruled then that the administration’s plan to try detainees before military commissions was unconstitutional. In 2004, the justices also affirmed the right of prisoners to challenge their detention in federal court.

Republicans in Congress and the administration had sought to restrict the access of detainees to U.S. courts. The Justice Department argued that the high court should have allowed the first wave of tribunals to take place before making a decision about the legal rights of detainees. Administration officials also argued the prisoners have sufficient legal safeguards.

In November 2009, U.S. Attorney General Eric Holder announced that the Obama Administration would prosecute the self-proclaimed mastermind of the September 11 attacks, Khalid Shaikh Mohammed, and four alleged co-conspirators in a Manhattan federal courtroom. The decision drew immediate criticism from Republican members of Congress and others, who feared that such a trial on U.S. soil would increase the chances of another terrorist attack, and that the conspirators could be released into the U.S. population if found innocent. Some decried use of the American justice protections by suspected terrorists, and others pointed out a potential annual cost of $200 million for security arrangements and $22 million to conduct the trial. After members of Congress enacted legislation to prevent the prisoners from being transported to the U.S., Holder, in early 2011, announced that the Manhattan trial decision had been reversed, and that the suspects would instead be tried by a military tribunal in Guantánamo Bay.

Guantánamo Detainees Win Right to Court Review (by Warren Richey, Christian Science Monitor)

Justices: Gitmo detainees can challenge detention in U.S. courts (by Bill Mears, CNN)

High court ruling opens U.S. courts to Gitmo detainee trials (by Joan Biskupic, USA Today)

Boumediene et al v. Bush, President of the United States et al (pdf)

Legal Analysis: Boumediene v Bush/Al Odah v United States (Center for Constitutional Rights)

Boumediene v Bush (Oyez)

Accused 9/11 Mastermind to Face Civilian Trial in N.Y. (by Charlie Savage, New York Times)

Judiciary Asks for $22 Million for Terrorism Trials (by Joe Palazzolo, Main Justice)

Sept. 11 Terrorist Suspects to Face Guantanamo Military Trial, U.S. Says (by Justin Blum, Bloomberg)

Pledge of Allegiance Ruling Riles Lawmakers

A federal appeals court ruled in 2002 that reciting the Pledge of Allegiance in public schools was an unconstitutional “endorsement of religion” because of the addition of the phrase “under God” by Congress in 1954. The three-member panel of the Ninth Circuit Court of Appeals remanded the case to a lower court.

Citing a concurring opinion in a Supreme Court decision, the Ninth Circuit said, “The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’”

Outraged lawmakers on both sides of the aisle blasted the ruling as “outrageous,” “nuts” and “stupid.” The U.S. Senate was so outraged by the decision that it passed a resolution 99-0 “expressing support for the Pledge of Allegiance” and asking Senate counsel to “seek to intervene in the case.”

Lawmakers blast Pledge ruling (CNN)

High Court Backs School Vouchers

In 2002, supporters of school vouchers won a major victory before the U.S. Supreme Court, which ruled that a school voucher program in Cleveland did not infringe upon the constitutional separation of church and state. President George W. Bush hailed the decision as a “landmark ruling” and a victory for the American family.

In the 5-4 ruling, the Supreme Court said the school voucher program did not constitute the establishment of religion. The much-anticipated ruling addressed a pilot project involving inner-city Cleveland schools. The ruling reversed an appeals court decision that struck down the program because nearly all the families receiving the tax-supported state tuition scholarships attend Catholic schools in Cleveland.

The Supreme Court majority said the parents have a sufficient range of choices among secular and religious schools that Ohio’s voucher plan did not violate the First Amendment prohibition against the establishment of religion. “We believe the program challenged here is a program of true private choice,” wrote then-Chief Justice William Rehnquist. “The Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district.”

Rehnquist was joined by then-Justice Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

In a lengthy and bitter dissent, then-Justice David Souter acknowledged that Cleveland public schools had failed, but said that is not reason enough to provide tax money for religious purposes. “If there were an excuse for giving short shrift to the establishment clause, it would probably apply here. But there is no excuse,” Souter argued.

Supreme Court affirms school voucher program (by Terry Frieden, CNN)

Zelman, Superintendent of Public Instruction of Ohio, et al v. Simmons-Harris et al

Zelman v. Simmons-Harris (Oyez)

Appellate and Supreme Court Strike Down D.C. Gun Law

In 2007, a federal appeals court made one of the most important rulings on gun control in decades, as it struck down a gun law in the District of Columbia. In a 2-1 decision, the court overturned D.C.’s longstanding ban on handguns in the district, rejecting the city’s argument that the Second Amendment right to bear arms applied only to militias.

The majority held that the activities protected by the Second Amendment “are not limited to militia service, nor is an individual’s enjoyment of the right contingent” on enrollment in a militia. “The district’s definition of the militia is just too narrow,” Judge Laurence Silberman wrote for the majority. “There are too many instances of ‘bear arms’ indicating private use to conclude that the drafters intended only a military sense.”

Judge Karen Henderson dissented, writing that the Second Amendment does not apply to the District of Columbia because it is not a state.

D.C. lawyers appealed the ruling to the U.S. Supreme Court. In 2008, the high court upheld the appellate ruling, opening the way for other legal challenges by gun activists, such as the National Rifle Association, to try to overturn local gun control measures in other parts of the country.

In June 2010, the U.S. Supreme Court extended to all 50 states its 2008 District of Columbia v Heller ruling that interpreted the Second Amendment of the Constitution as supporting an individual’s right to bear arms in the nation’s capital. The new ruling—a 5-4 decision whose majority opinion was written by Justice Samuel Alito on behalf of the Court’s conservative wing—stated that the right to bear arms cannot be violated by state and local governments.

Supreme Court Strikes Down D.C. Gun Ban, Upholds Individual Right to Keep and Bear Arms (Associated Press)

Q&A: Gun Laws in Washington DC (BBC News)

District of Columbia et al v. Heller (pdf)

District of Columbia v. Heller: The Federalist Society Online Debate Series

DC v. Heller (Scotus Wiki)

District of Columbia v. Heller (Oyez)

Supreme Court affirms fundamental right to bear arms (by Robert Barnes and Dan Eggen, Washington Post)

Ruling May Echo in Gun Debate (By Jonathan Saltzman, boston.com)

Open Up Supreme Court to the Public

Over the past three decades, the judicial process has increasingly become a living room spectacle, as many lower courts have opened their doors to television cameras and cable broadcasts of court proceedings. This change came about as a result of a 1980 U.S. Supreme Court ruling, Richmond Newspapers v. Virginia, which stated that a public trial belonged not only to the accused but to the public and press as well.

Although the ruling opened the way for some trials to be televised, the U.S. Supreme Court itself has steadfastly refused to open its own proceedings to cameras. But this should change, argues former Sen. Arlen Specter (R-Pennsylvania), a leading voice for judicial reform in Congress.

Specter insists that if ever there was a time when the high court should have opened itself up to TV coverage, it was December 11, 2000, the day the Supreme Court justices made their landmark ruling that settled the outcome of the 2000 presidential race between Al Gore and George Bush.

Given the justices’ refusal to allow cameras in their courtroom, Specter says Congress should take up the matter through legislation. He says Congress has every right to make this decision for the high court, given the many other dictates lawmakers have imposed, such as when the court’s term begins (the first Monday in October), the number of justices on the court and the number of justices that constitute a quorum (six). In addition, acts of Congress govern the federal courts regarding establishment of jurisdiction in civil and criminal cases, speedy-trial rules and time limits in deciding habeas corpus cases.

Specter has sponsored legislation that mandates television coverage of the Supreme Court unless it is barred by the court on a case-by-case basis on the grounds that it would adversely affect the proceedings. Two justices, Anthony Kennedy and Clarence Thomas, testified before a House subcommittee that Congress should mind its own business and respect the court’s autonomy, just as the court has respected Congress’ autonomy.

Specter counters that the Supreme Court has not respected Congress’ autonomy, citing legal decisions affecting legislation protecting women against violence and another prohibiting discrimination in employment.

Hidden Justice(s) (by Arlen Specter, Washington Post)

U.S. Supreme Court: Justice Alito cites ‘observer effect’ in opposing cameras in court

(by Donal Brown, First Amendment Coalition)  

It's time to televise U.S. Supreme Court hearings (by Jason Mercier, Washington Policy Center)

Senate Committee Votes to Require Supreme Court on TV (by Patricia Murphy, Huffington Post)

Cameras in Courts (U.S. Courts Web site)

Break Up the Ninth Circuit

One of the longest-running debates involving federal courts has centered on the makeup of the Ninth Circuit Court of Appeals, based in San Francisco, California. Year after year, legislation is introduced to split the appellate district—the largest in the country—in two, including five congressional bills this decade alone. Currently, the Ninth Circuit covers California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii,
Guam, and the Northern Mariana Islands.

Many of the proposed break-up plans have called for creating a new Ninth Circuit that would consist of California, Hawaii, Guam, and the North Marianas Islands, while a new Twelfth Circuit would comprise Arizona, Nevada, Idaho, Montana, Oregon, Washington, and Alaska.

It has been estimated by judicial experts that such a split could cost as much as $96 million in start up costs for the Twelfth Circuit and $16 million in annual operating expenses.

Pro:

Conservatives have long led the charge to change the composition of the Ninth Circuit. To them, the court is out of touch with the legal mainstream, issuing rulings that often are overturned by the U.S. Supreme Court. Some have referred to the Ninth as the Supreme Court’s “whipping boy.” Often, the high court reverses more opinions from the Ninth Circuit than any other, and during the current judicial term, the Supreme Court reversed or vacated 19 cases out of 26 it took from the circuit. In the 2006-07 term, it did so in 19 of 22 cases.

Others have argued that the circuit’s behemoth size is what is causing its rash of “extreme decisions,” such as the 2002 decision attacking the Pledge of Allegiance. Thus, if it were split in half, the move would save 60 to 120 appeals a year from being decided by panels with a majority of “extreme judges.”

Disorder in the court—The 9th Circuit is overturned more than any other appeals court. Its size may be a factor (by Barry T. Fitzpatrick, Los Angeles Times)

Vandy Prof: Split up the 9th Circuit, Cut Down the Wackiness (by Ashby Jones, Wall Street Journal)

Con:

Opponents of the split argue that the newly formed Ninth Circuit would be burdened with an increased caseload. California and Hawaii would keep 72% of the caseload of the current Ninth Circuit, but only 60% of the judges. As a result, a new Ninth Circuit would have 536 cases per judge, while the proposed Twelfth Circuit would have only 317 cases per judge.

Opponents also point out that only three of the 24 active judges on the Ninth Circuit favor splitting the circuit. Additionally, the state bar associations in Arizona, Washington, Montana, and Hawaii oppose the break up.

Environmentalists insist the effort to split the court represents a form of “environmental gerrymandering.” By removing California from a newly formed Twelfth Circuit, the new court would have fewer liberal judges to stand in the way of businesses and development plans in Montana, Arizona, Idaho, and Nevada.

Statement of the ABA submitted to the Committee on the Judiciary U.S. Senate on the Subject of Proposals to Split the Ninth Judicial Circuit (American Bar Association) (pdf)

 Ideologically-Based Efforts to Split the U.S. Ninth Circuit Court of Appeals (Judging the Environment) (pdf)

Background:

Future of 9th Circuit Under Review (by Kelley Beaucar Vlahos, Fox News)

For 9th Circuit, Breaking Up Is Hard to Do (by Gary Young, National Law Journal)

Latest Plan to Split 9th Circuit Aims to Sidestep Debate (by Justin Scheck, Law.com)

Ninth Circuit sees many rulings overturned (by Carol J. Williams, Los Angeles Times)

Legal community remains divided over calls to split the 9th Circuit (by Patricia Manson, Chicago Daily Law Bulletin)

William H. Rehnquist (September 26, 1986 - September 3, 2005)

Warren Burger (June 23, 1969 - September 26, 1986)

Earl Warren (October 5, 1953 - June 23, 1969)

Fred Moore Vinson (June 24, 1946 - September 8, 1953)

Harlan Fiske Stone (July 3, 1941 - April 22, 1946)

Charles Evans Hughes (February 24, 1930 - June 30, 1941)

William Howard Taft (July 11, 1921 - February 3, 1930)

Edward White (December 19, 1910 - May 19, 1921)

Melville Fuller (October 8, 1888 - July 4, 1910)

Morrison Waite (March 4, 1874 March 23, 1888)

Salmon Chase (December 15, 1864 - May 7, 1873)

Roger Brooke Taney (March 28, 1836 - October 12, 1864)

John Marshall (February 4, 1801 - July 6, 1835)

Oliver Ellsworth (March 8, 1796 - December 15, 1800)

John Rutledge (August 12, 1795 - December 15, 1795)

John Jay (October 19, 1789 - June 29, 1795)